Solvang City Council failed to come to an agreement on how to fill the seat of Hans Duus after a series of 2-2 votes led to the only agreement they reached on the issue Monday night — to table the decision until the next meeting.
The council has 60 days from Aug. 28 — the day Duus resigned his seat after moving to Santa Maria — to decide how to replace him, which means three meetings remain before the state-mandated clock runs out.
California’s Government Code gives city councils and other elected boards two options for filling a vacant seat: Appoint a replacement or hold a special election no less than 114 days after reaching that decision.
Either way, whoever is chosen would serve only until the next regular election, which in this case would be in 2018.
But in 2009, after a contentious effort to fill an unexpired term the previous year, the Solvang council adopted a protocol for filling an unexpected vacancy.
That protocol calls for offering the seat to the first runner-up in the last election.
If that person accepts, the council would appoint him or her to fill the vacancy; if that person declines, the offer would go to the second runner-up if the difference in the number of votes received by that person are within 1.5 percentage points.
Two seats were up for election in November 2016. Ryan Toussaint won a seat with the most votes, and Duus won re-election by placing second 45 votes behind. First runner-up was Karen Waite, just five votes behind Duus.
Waite has already told the council she wants the seat, but opinions on whether protocol should be followed are mixed not only on the council but also among members of the public.
A number of people have already turned in applications to be appointed to the seat even though the council hasn’t decided to call for them.
And City Manager Brad Vidro said when the vacancy arose in 2008, the county wanted $30,000 to manage a special election by ballot or $20,000 for a vote-by-mail election.
Councilwoman Joan Jamieson and Mayor Jim Richardson both favored following protocol, while Toussaint and Councilman Neill Zimmerman both favored calling for a special election.
Jamieson pointed out a binder she said contains the city’s policies and protocols, and the procedure for filling a vacant seat is in both sections.
“We are a government agency that runs on rules and regulations,” Jamieson said. “We don’t get to pick and choose (which ones to follow).”
Referring to the November 2016 election, she said, “That was a mandate from the city that said, ‘We like these people.’ … I implore the council to follow the protocol.”
But Zimmerman called the protocol “horrible policy” and “unconstitutional.”
“The one thing that doesn’t sit well with me is the unilateral power on this council (to appoint a replacement),” he said. “No way are you going to get me to budge from a special election.”
Richardson had chosen to have the council address the issue by first deciding on whether to follow protocol; then, if that process was rejected, to consider calling for applications for review by council members to appoint a replacement; and, if that was rejected, to consider a special election.
He said public comment would be allowed on each process only after a motion had been made but before the council voted.
Toussaint didn’t like the way that affected the opinions of citizens.
“I feel like right now we’re rejecting them (by not letting them speak),” he said. “We’re not even going to hear from them tonight.”
But Richardson said the public had its say when they voted for those who ran for office.
Toussaint moved to reject the protocol, and Zimmerman seconded.
“Did we just throw this binder away?” Jamieson asked.
Toussaint responded that the council was elected to “add, delete and modify the policy.”
“Why even have a city council?” he asked. “The staff has the binder; they should follow it.”
Richardson then put forth a substitute motion, seconded by Jamieson, to follow protocol.
Then it was the public’s turn to weigh in.
Gay Infanti, who sits on the city Planning Commission, urged the council to follow protocol.
“We should be the ones electing our representative,” she said, noting Waite only got 0.4 percent fewer votes than Duus.
Husband Mark Infanti, who sits on the Board of Architectural Review with Waite, agreed protocol should be followed.
“The populace thinks she’s the next best,” he said, urging the council to move quickly to fill the position.
Edwin Skytt, who decided not to seek re-election to the council in 2016, opening up the second seat, also urged the council to follow protocol.
“We’re not supposed to change protocols every time something comes up that we don’t like,” he said. “If you don’t like the way she does the job, she’s only going to be there 14 months anyway. She’s not going to be there the full four-year term.”
He said Zimmerman is always looking to save the city money, but a special election would not do that, and by the time it could be held, the winner would only be in office eight to 10 months.
Fred Kovol, a former council member, argued against the protocol, saying the knowledge people had for the election was from a year ago and “times have really changed.”
“A precedent set before 2008, 2009 does not work today,” he said. “We need a change.”
Chris Djernaes, one of those who wants to apply for appointment to the seat, told the council this is an “amazing opportunity to expand public awareness and participation.”
“Open it up, make it more democratic and more transparent,” he said. “You have an opportunity to bring the best possible candidates to the floor. We’re facing a whole different set of circumstances than we were at this time last year.”
Lana Clark, a Solvang lawyer, questioned whether the council’s protocol is even legal, as the state code only allows two methods of filling a vacancy — appointment or election.
“It does not make a provision for second runner-up,” she said.
But City Attorney Roy Hanley said the protocol is legal as a way for the council to decide who to appoint to the vacancy.
Responding to Skytt’s comment about saving the city money, Zimmerman agreed it’s important for him.
“When it comes to the interests and trust of the people, I’m not gong to take that away from them,” he said. “I really believe we’re taking away the voice of the people.”
Votes on the motions to reject and to follow protocol ended in 2-2 ties, as did subsequent motions to take applications for appointment to the seat and to call for a special election.
Hanley told the council if it can’t come to a decision at the end of 60 days, it will automatically go to a special election anyway.
Several members of the audience suggested the council hold off on trying to make a decision, as three more meetings remain to discuss the issue.
By consensus, council members agreed to table the issue until the Sept. 25 meeting.